THE NATION

Scalia Debates Law, Liberties With ACLU Chief

In a televised session, the Supreme Court justice defends his views before a liberal crowd of 1,500.

WASHINGTON — Supreme Court Justice Antonin Scalia went before 1,500 members of the American Civil Liberties Union on Sunday to explain his views on the Constitution and on the proper role of judges, winning polite applause from the liberal audience.

"My job, as I see it, is to preserve the original meaning of the Constitution," Scalia said -- not to decide whether a law "is a good idea or bad idea."

The court's most outspoken conservative, Scalia does not shy away from speaking to audiences that do not share his views, and on occasion he has faced loud protests and persistent hecklers.

That was not the case Sunday, however, as he and the ACLU's longtime president, Nadine Strossen, debated the law and civil liberties in an hourlong session televised by C-SPAN. Before it began, an ACLU official reminded the audience that the word "civil" was part of the group's name.

Strossen and Scalia are friends and addressed each other as "Nino" and Nadine. She noted that Scalia had agreed with the ACLU in several important cases.

Two years ago, for example, dissenting in Hamdi vs. Rumsfeld, Scalia strongly rejected the Bush administration's claim that the president could detain and hold a U.S. citizen in military custody.

The majority of the court ruled that the administration could hold alleged "enemy combatants" such as Yaser Esam Hamdi if they were given hearings by the military. Hamdi, captured in Afghanistan in 2001, was a dual citizen, born in the United States to Saudi parents.

Scalia and Justice John Paul Stevens would have freed Hamdi from military custody and required that he be given a full trial in a civil court.

After the ruling, the government returned him to Saudi Arabia, and he renounced his U.S. citizenship.

But Scalia has also dissented from rulings that foreign-born prisoners held in the U.S. facility at Guantanamo Bay, Cuba, were entitled to challenge their detentions in the federal courts through a writ of habeas corpus, which requires that the detainee be brought before a judge to examine the legal basis for custody.

This issue may return to the high court soon. Last month, Congress voted to deprive federal courts of the power to grant such writs to "aliens," including the foreign-born prisoners at Guantanamo.

The justices may be called upon to decide whether Congress has the power to withdraw or "suspend" habeas corpus for such people. Scalia seemed to suggest Sunday that Congress could do just that.

"Unless there is a suspension of the writ of habeas corpus, which Congress can do," he said, imprisoned persons can seek the help of the courts.

Nominated to the high court in 1986 by President Reagan, Scalia, 70, has been a steady supporter of the death penalty and has opposed abortion and gay rights.

His rulings in such cases may please conservatives and disappoint liberals, but Scalia said Sunday that they reflected his view of the Constitution's meaning.

For instance, the Constitution states that "no person shall ... be deprived of life ... without due process of law" -- which indicates, in Scalia's opinion, that people can be executed if given a full and fair trial.

As for gay rights and abortion, he said, "nobody ever thought that they had been included in the rights contained in the Bill of Rights, which is why abortion and homosexual sodomy were criminal for 200 years."

In a 2003 Texas case, Scalia offered a sharp dissent when the court struck down laws that made private sex acts by gays or lesbians a crime.

Strossen, a professor at New York Law School, challenged the justice's view that the Supreme Court has no role in protecting privacy.

"Ours is a government of limited powers," she said. The court should protect "adults in the privacy of their own home."

But Scalia argued that the state had "a right to proscribe sexual mores," noting that societies have long had laws prohibiting bigamy, incest and prostitution. Those laws can be repealed, but they should not be struck down by the courts, he said.